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May 11, 2023May 11, 2023

Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607 (Wash.App. Div. 1 1984)

This is a case summary of Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “Simon Lewis appeal[ed] from the dismissal of his employment discrimination action against Lockheed Shipbuilding, alleging that the trial court applied an erroneous statute of limitations. [The Court of Appeals] … agree[d] and reverse[d] the order of dismissal.” Id. at 608. The subjects addressed herein include the following:

» STATUTE OF LIMITATIONS

» WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

(NOTE: this article does not address the additional issue concerning the continuing-violations doctrine.)

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash. App. 1984) — **Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984)**

case summarY – 7 PRIMARY Facts:

[1] Lewis, a black male, was hired on October 12, 1977, by Lockheed Shipbuilding and Construction Company to work on a cable crew.

[2] It appears that Lewis suffered from hypertension, and that his doctor recommended that he be placed on light duty. [(Footnote omitted)].

[3] The collective bargaining agreement provided that an employee would be regarded as having voluntarily terminated his employment following three unexplained absences.

[4] Because Lewis failed to report to work for three consecutive workdays or more without explanation, Lockheed advised Lewis’ collective bargaining representative on May 4, 1978 that Lewis would not be rehired.

[5] It also appears that Lewis made several unsuccessful attempts to regain employment at Lockheed, but was turned down because he was placed in a “no re-hire” category.

[6] On March 6, 1981, Lewis sued Lockheed, alleging that his dismissal was the result of illegal discrimination under Washington law based on his disability and/or race.

[7] The trial court, however, granted Lockheed’s motion to dismiss on the ground that Lewis’ claim was barred by the 2-year statute of limitations, RCW 4.16.130.

Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 608-09, 676 P.2d 545 (Wash.App. Div. 1 1984) (footnote omitted) (paragraph formatting and hyperlink to external website added).

ISSUE #1: Under the Washington Law Against Discrimination (RCW 49.60), do courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2)?

[1-1] THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) DOES NOT HAVE ITS OWN STATUTE OF LIMITATIONS

“RCW 49.60, the Washington Law Against Discrimination, does not have its own statute of limitations.” Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 609, 676 P.2d 545 (Wash.App. Div. 1 1984) (hyperlink to external website added).

[1-2] TWO-YEAR STATUTE OF LIMITATIONS (“CATCH-ALL STATUTE”) — RCW 4.16.130

“RCW 4.16.130 provides:

Actions for relief not otherwise provided for. An action for relief not herein[before] … provided for, shall be commenced within two years after the cause of action shall have accrued.

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website added). This is also known as the “catch-all” statute. See id at 611.

[1-3] THREE-YEAR STATUTE OF LIMITATIONS — RCW 4.16.080(2)

“RCW 4.16.080 provides in relevant part:

Actions limited to three years. Within three years:

* * *

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website added).

[1-3a] Three-Year Statute of Limitations Applies to Invasions to Plaintiff’s Person or Property Rights

“RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (citing Noble v. Martin, 191 Wash. 39, 46, 70 P.2d 1064 (1937); Peterick v. State, 22 Wash.App. 163, 168-69, 589 P.2d 250 (1977)) (hyperlink to external website added). Thus, “where the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id. at 612.

[1-3b] The WLAD Liberal-Construction Mandate Supports 3-Year Statute of Limitations

“[S]upport for applying the 3-year statute is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Lewis, 36 Wn.App. at 613 (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

[1-4] THE CASELAW (4 CASES)

In this case, the Court evaluated the following five cases to resolve the issue concerning statute of limitations:

[1-4a] Canon v. Miller

» “In Cannon [v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1045)], the plaintiffs sought to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201, et seq. (West 1978).” Lewis, 36 Wn.App. at 609 (hyperlink to external website added).

» “Because the FLSA does not have its own statute of limitations, the statute of limitations of the state where the action was brought was applicable.” Id.

» “The plaintiffs contended that the 3-year contract statute of limitations applied, and the defendants relied on the 2-year catch-all statute.” Id. at 609-10.

» “The court recognized that although the FLSA in effect created an implied obligation in the employment contract to pay overtime wages, this liability was not truly contractual because it would not have existed but for the statute.” Id. at 610 (citing Cannon, 22 Wash.2d at 241, 155 P.2d 500).

» “Accordingly, the court held that FLSA actions were not governed by the contract statute of limitations, and instead applied the catch-all statute.” Id.

[1-4b] Luellen v. Aberdeen

» “In Luellen v. Aberdeen, 20 Wash.2d 594, 148 P.2d 849 (1944), the plaintiff sought reinstatement to the city police force.” Lewis, 36 Wn.App. at 612.

» “The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him.” Id.

» “The court thus applied the 3-year statute, stating that it
was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.”
Id. (citing Luellen, 20 Wash.2d at 604, 148 P.2d 849).

» Accordingly, Division One concluded: “[W]here the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id.

[1-4C] State ex rel. Bond v. State

» “In State ex rel. Bond v. State, 59 Wash.2d 493, 368 P.2d 676 (1962), the plaintiff sought reinstatement to public employment pursuant to a statute granting veterans an employment preference.” Lewis, 36 Wn.App. at 610

» “He alleged that his claim fell within the 3-year statute as being an action upon ‘any other injury to the person or rights of another'”. Id. (citing Bond, 59 Wash.2d at 495, 368 P.2d 676. See RCW 4.16.080(2)) (internal quotation marks omitted) (hyperlink to external website added).

» “The defendant contended that the catch-all statute applied, because the plaintiff’s claim was founded upon a liability created by statute. The court flatly rejected this argument.” Id.

» “In the court’s view, cases such as Cannon held only that actions founded upon purely statutory liabilities do not fall within the 3-year contract statute of limitations–they did not hold that such actions necessarily fall within the catch-all statute.” Id. at 610-11 (citing Bond, 59 Wash.2d at 497-98, 368 P.2d 676) (footnotes omitted).

» The Court declared:

We reiterate that there is no such category as “an action on a liability created by a statute” in our limitation statutes. Such an action does not fall within the “catch-all” statute unless there is no other statute of limitations applicable thereto, i.e., it is “an action for relief not hereinbefore provided for.”

Id. at 611 (citing Bond, 59 Wash.2d at 498, 368 P.2d 676) (footnote omitted).

» “The court went on to hold that an action under the veteran’s preference statute fell within the predecessor of RCW 4.16.080(2) as being an action for any other injury to the person or rights of another not hereinafter enumerated.” Lewis, 36 Wn.App. at 611 (citing Bond, 59 Wash.2d at 500, 368 P.2d 676) (hyperlink to external website added).

[1-4D] Washington v. Northland Marine Co.

» “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 612.

» “Because the LMRA has no statute of limitations, the court was forced to look to the appropriate Washington statute.” Id.

» “Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.” Lewis, 36 Wn.App. at 612 (hyperlink to external website added).

[1-5] LOCKHEED CONTENDS THAT THE 2-YEAR “CATCH-ALL” STATUTE OF LIMITATIONS APPLIES TO WLAD ACTIONS

In this case, Lockheed contends that the 2-year “catch-all” statute of limitations applies to WLAD actions pursuant to RCW 4.16.130; whereas Lewis argues that a 3-year statute of limitations applies under RCW 4.16.080(2). See Lewis, 36 Wn.App. at 609 (hyperlinks to external website added).

[1-5A] LOCKHEED’S ARGUMENT #1 — THE 2-YEAR STATUTE OF LIMITATIONS APPLIES to liabilities created by statute:

“Lockheed contends that the 2-year ‘catch-all’ statute of limitations, RCW 4.16.130, applies to actions brought under … [the Washington Law Against Discrimination].” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). Accordingly, it asserts that “the 2-year catch-all statute of limitations applies to all causes of action that are founded upon liabilities created by statute.” Id. “Because Lewis would not have a claim but for the Washington Law Against Discrimination, his claim, Lockheed contends, falls within RCW 4.16.130.” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). “Lockheed relies on Cannon v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1945) to support this view.” Lewis, 36 Wn.App. at 609.

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #1

» There is no such category as an action on a liability created by a statute in our limitations statutes.

“Lockheed … relies on Cannon [v. Miller] for the proposition that all actions founded upon liabilities created by statute necessarily fall within the 2-year catch-all statute. We do not agree.” Lewis, 36 Wn.App. at 610. “We reiterate that there is no such category as ‘an action on a liability created by a statute’ in our limitation statutes. Such an action does not fall within the ‘catch-all’ statute unless there is no other statute of limitations applicable thereto, i.e., it is ‘an action for relief not hereinbefore provided for.'” Id. at 611. (citing State ex rel. Bond, 59 Wash.2d at 498, 368 P.2d 676).

[1-5B] LOCKHEED’S ARGUMENT #2 — THE WLAD DOES NOT PROTECT PROPERTY RIGHTS:

Moreover, “Lockheed, … argues that RCW 49.60 does not purport to confer or protect any property rights.” Lewis, 36 Wn.App. at 612-13 (hyperlink to external website added).

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #2

» This argument is disingenuous: The 3-year statute covers all direct invasions of property that are intangible in nature.

“[T]he issue here is if actions under RCW 49.60 fall within RCW 4.16.080(2). Only if they do not would the catch-all statute apply.” Lewis, 36 Wn.App. at 611 (hyperlinks to external website added). “RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (internal citations omitted) (hyperlink to external website added). Accordingly, the Court found that Lockheed’s “argument is disingenuous. As [the case of] Luellen [v. Aberdeen] demonstrates, the 3-year statute covers all direct invasions of ‘property that is intangible in nature.'” Lewis, 36 Wn.App. at 613 (emphasis added).

EXAMPLE #1 (Washington v. Northland Marine): The Court offered Washington v. Northland Marine Co. for example: “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 613. The Court determined:

Because the LMRA has no statute of limitations the court was forced to look to the appropriate Washington statute. Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.

Lewis, 36 Wn.App. at 613 (both hyperlink to external website and emphasis added).

EXAMPLE #2 (Luellen v. Aberdeen): The Court also determined that, in Luellen v. Aberdeen:

[T]he plaintiff sought reinstatement to the city police force. The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him. The court thus applied the 3-year statute, stating that it was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.

Lewis, 36 Wn.App. at 613 (citing Luellen, 20 Wn.2d at 604, 148 P.2d 849) (emphasis added).

[1-6] FURTHER SUPPORT FOR APPLYING THE 3-YEAR STATUTE OF LIMITATIONS IS FOUND IN WLAD:

Lastly, the Court determined: “Further support for applying the 3-year statute is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

[1-7] COURTS APPLY A 3-YEAR STATUTE OF LIMITATIONS TO WLAD ACTIONS PURSUANT TO RCW 4.16.080(2) — REVERSED & REMANDED:

Here, the Court found that under the Washington Law Against Discrimination (RCW 49.60), courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2). See Lewis, 36 Wn.App. at 611-613 (hyperlinks to external website added). Moreover, the Court determined that, “even if the arguments favoring application of the 2 and 3-year statutes were otherwise fairly equal, applying the 3-year statute better supports the liberal policies underlying the Law Against Discrimination.” Id. at 613. Accordingly, Division One held: “The order dismissing the action is reversed and the case is remanded for trial.” Id. at 614.

NOTABLES & IMPLICATIONS:

FAILURE OF PUBLIC OFFICIALS TO PERFORM THEIR OFFICIAL DUTIES — northern grain & warehouse co. V. holst

The Court in this case also evaluated Northern Grain & Warehouse Co. v. Holst, to conclude:

Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.

Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

The Court evaluated Northern Grain as follows:

• “In Northern Grain & Warehouse Co. v. Holst, [ ] the plaintiff was unable to retrieve grain stored at a warehouse upon presentation of a warehouse receipt.” Lewis, 36 Wn.App. at 611-12.

• “He then sued members of the public service commission for negligently issuing a license to the owner of the warehouse without obtaining a bond as required by state law.” Id. at 612.

• “The court reasoned that the 3-year statute of limitations for injuries to the ‘rights of another’ must be construed narrowly or it would incorporate all causes of action, completely nullifying the catch-all statute.” Id.

• “Accordingly, the court held that the plaintiff’s cause of action was not based upon an injury sufficiently direct to fall within the 3-year statute.” Id.

• “Rather, it was ‘indirectly based upon the failure of public officials to perform duties imposed by law.'” Id. (citing Northern Grain, 95 Wash. at 315, 163 P. 775).

• “Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.” Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

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July 11, 2021May 26, 2022

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)

This is a case summary of Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013). Subjects include, but are not limited to, the following:

» DIRECT EVIDENCE TEST

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

» UNLAWFUL RETALIATION

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013) — **Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)**

case summarY – 5 Facts:

[1] Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

[2] [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

[3] Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

[4] [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

[5] [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013).

ISSUE #1: Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

[1-1] DISPARATE TREATMENT: Disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)).

“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

[1-2] PRIMA FACIE TEST (2 OPTIONS): “A plaintiff can establish a prima facie case by either[:]

[1.] offering direct evidence of an employer’s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).

[1-3] DIRECT EVIDENCE TEST (2 REQUIREMENTS): “[A] plaintiff can establish a prima facie case by providing direct evidence that[:]

(1) the defendant employer acted with a discriminatory motive and

(2) the discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).

[1-4] EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).

[1-5] SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: The plaintiff-employee “must next [establish that] … the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id. at 746 (referencing Kastanis, 122 Wn.2d at 491).

Adverse Employment Action: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).

[1-6] ALONSO’S DIRECT EVIDENCE TEST: “To satisfy the direct evidence test, Alonso must show that Qwest acted with discriminatory motive in taking an adverse employment action against him based on his protected status as either a veteran, Mexican-American, or disabled person.” Id. at 744 (internal citations omitted).

[1-7] EVIDENCE OF DISCRIMINATORY MOTIVE (VETERAN STATUS):

In this case:

(a) Alonso recounted that Martinez “stated hatred of disabled combat veterans: ‘I will tell you what I hate[:] people that served in the first Gulf War for five days and claim a disability.’ “

(b) “the record demonstrates that Alonso was the only disabled Gulf War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from his service.”

(c) “Martinez knew of Alonso’s combat veteran status and, according to Alonso, even ‘stated that he hated the fact that I was receiving disability pay.’ “

Id. at 745 (alteration in original) (internal citations and quotation marks omitted). Accordingly, the Court found that “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay.” Id.

[1-8] EVIDENCE OF DISCRIMINATORY MOTIVE (NATIONAL ORIGIN & SPEECH IMPEDIMENT):

In this case:

(a) “… Alonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term[ ]”;

(b) “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent;”

(d) “contrasted themselves to Alonso because they ‘spoke correct English,’ unlike him.”

Id. (internal citations omitted). “This open mocking based on Alonso’s national origin and speech impediment constitutes further direct evidence of discriminative intent, specifically relating to Alonso’s protected disability and national origin statuses.” Id.

[1-9] SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION (EVIDENCE OF ADVERSE EMPLOYMENT ACTION): In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Adverse Transfer: Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. Id. at 746.

Due to conflicting evidence, the Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746.

The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.” Id. at 747

Hostile Work Environment: Alonso also argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747.

The Court considered derogatory comments made by Martinez and other employees, as described above, and it also considered the following additional comments allegedly made by Martinez regarding Alonso’s veteran status and PTSD: “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748 (internal citations omitted).

“Viewed in a light most favorable to Alonso, the evidence showed … [:]

[a] Martinez and other employees openly bullied and condoned the bullying of Alonso because of his accent stemming from his Mexican-American heritage and speech impediment disability, as well as his disabled veteran status[ ] [;]

[b] [t]he bullying was so pervasive that other employees noticed and sympathized with Alonso;

[c] one co-worker opined that Alonso’s treatment was so bad that ‘[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.’

Id. (internal citations omitted) (one alteration in original). “Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.” Id.

Conclusion of the issue — **-CONCLUSION-**

[1-10] ALONSO ESTABLISHED A PRIMA FACIE DISPARATE TREATMENT CASE UNDER DIRECT EVIDENCE TEST: The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id.

It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id

ISSUE #2: Did Alonso establish a prima facie hostile work environment claim?

[2-1] HOSTILE WORK ENVIRONMENT: “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that[:]

(1) the harassment was unwelcome,

(2) the harassment was because the plaintiff was a member of a protected class,

(3) the harassment affected the terms and conditions of employment, and

(4) the harassment is imputable to the employer.

Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)) (paragraph formatting added).

Actionable Harassment: “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

[2-2] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

[2-3] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)).

“Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

[2-4] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

[2-5] UNWELCOME (1ST ELEMENT): The Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment. Id. at 749.

[2-6] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): The Court considered Alonso’s offered evidence regarding military status (Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s); regarding race (Martinez and others subjected Alonso to racially derogatory language (established above)); and regarding disability (he was a victim of open mocking for his speech impediment (established above)). See id. at 749-50.

Accordingly, the court determined that Alonso satisfied this element in establishing a prima facie hostile work environment claim. See id. at 750-51.

[2-7] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752.

The Court held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

[2-8] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. See id. at 752-53.

Thus, Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. See id. The Court also found that Martinez participated in some of the harassment as described above. Id. at 753.

Alonso established the harassment is imputable to the employer through supervisor Martinez. Id.

[2-9] ALONSO ESTABLISHED A PRIMA FACIE HOSTILE WORK ENVIRONMENT CLAIM (REVERSED): The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal of his hostile work environment claim. Id.

ISSUE #3: Did the superior court err in dismissing Alonso’s retaliation claim?

[3-1] UNLAWFUL RETALIATION: “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210).

PRIMA FACIE CASE. “To establish a prima facie retaliation case, a plaintiff must show that[:]

(1) he engaged in statutorily protected activity,

(2) his employer took an adverse employment action against him, and

(3) there is a causal link between the activity and the adverse action.”

Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added).

[3-2] PROTECTED ACTIVITY: “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

[3-3] COMPLAINTS MUST REFERENCE PLAINTIFF’S PROTECTED STATUS: “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

[3-4] PROTECTED ACTIVITY (1ST ELEMENT): The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.

Here, Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id.

Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

[3-5] ALONSO FAILED TO ESTABLISH A PRIMA FACIE RETALIATION CASE (TRIAL COURT AFFIRMED): The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. See id. at 754. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

NOTABLES & IMPLICATIONS:

EMPLOYEE’S ALLEGED HUMILIATION & SELF-DIAGNOSED MENTAL SICKENESS RAISED INFERENCE THAT CONDITION RESULTED FROM HOSTILE WORK ENVIRONMENT

(1) “Whether offensive comments affect the conditions of employment is a factual question.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (“holding that employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised inference that condition resulted from hostile work environment”), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

(3) A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

HOSTILE WORK ENVIRONMENT: TWO COMMENTS MAY BE ENOUGH TO SUPPORT REASONABLE INFERENCE THAT PROTECTED CLASS STATUS WAS MOTIVATING FACTOR

(4) Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

INDIRECT DEROGATORY RACIALLY CHARGED LANGUAGE MAY BE ACTIONABLE

(5) “[A] defendant need not levy derogatory racially charged language directly at the plaintiff to subject the plaintiff to a hostile work environment and survive summary judgment.” See Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (defendant’s derogatory statements about Dr. Martin Luther King Jr. and calling African American plaintiff a ” bitch” could be considered racially motivated and subjected plaintiff to hostile work environment), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

THE O’NEAL RULE

(6) “In O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), the Seventh Circuit held that the loss of a plaintiff’s cellular telephone, pager, vehicle, and parking space did not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff was transferred.” Id. at 746. The Court in this case raised and dismissed the O’Neal Rule due to conflicting evidence.

TITLE VII FOR GUIDANCE

(7) “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

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July 8, 2021May 26, 2022

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

This is a case summary of Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979). Primary subjects include, but are not limited to the following:

» PROTECTED CLASSES (PERCEIVED DISABILITY)

» TERMINATION BASED UPON PERCEIVED (NONEXISTENT) DISABILITY

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**Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)**

CASE SUMMARY – 11 Facts:

[1] Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

[2] He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

[3] Barnes contends that he does not now, nor did he ever have, epilepsy.

[4] He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

[5] After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

[6] The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

[7] After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

[8] The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

[9] The Court refused the invitation.

[10] The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

[11] The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979) (internal citations omitted) (hyperlink added).

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Barnes v. Washington Natural Gas Co., 22 Wn.App. 576, 578 (Div. I 1979).

[1-2] WASHINGTON ADMINISTRATIVE CODE: “The Washington State Human Rights Commission (The Commission) … has adopted regulation WAC 162-22-040 [(currently WAC 162-22-020)] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.”

Id. at 579 (hyperlinks added).

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

[1-3] JUDICIAL REVIEW OF REGULATIONS: “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314).

[1-4] LEGISLATIVE INTENT: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582.

But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

[1-5] ESSENCE OF EMPLOYMENT DISCRIMINATION: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id.

It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id.

The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

[1-6] LEGISLATIVE PURPOSE: The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id

The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id.

The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.”

The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

[1-7] PROTECTED CLASS: Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

[1-8] APPLICATION OF POLICY: The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

[1-9] EMPLOYER’S INTERESTS: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

[1-10] BARNES HAS STANDING BASED ON PERCEIVED DISABILITY (REVERSED & REMANDED): The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

[2-1] PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted).

The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

[2-2] SEE ANALYSIS UNDER ISSUE #1, ABOVE.

[2-3] REGULATION IS WITHIN SCOPE OF WLAD (REVERSED & REMANDED): The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

NOTABLES & IMPLICATIONS:

PUBLIC POLICY

(1) “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

(2) “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010.” Id. at 583, n. 2 (hyperlinks added).

“The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. (hyperlink added).

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July 7, 2021November 26, 2022

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)

This is a case summary of Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002). Subjects include, but are not limited to the following:

» DISABILITY-BASED HOSTILE WORK ENVIRONMENT

» WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

» INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

» DEFAMATION

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**Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)**

case summarY – 22 Facts:

[1] This suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at … [the] Fred Meyer store in Spokane.

[2] On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim.

[3] In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.”

[4] On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as one of them yelled, “Oh, I hurt my back, L & I, L & I!”

[5] They “audibly called [Robel] a ‘bitc[-]’ and ‘cun[-].'”

[6] They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.”

[7] In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.”

[8] Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretending to hurt their backs & laugh.”

[9] Robel reported the incidents to her union representative, … Banka.

[10] According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with … Wissink, the store director, for Friday, August 16.

[11] At [a subsequent all-deli employee meeting, called by Wissink on August 19, 1996,] Wissink warned the employees that future harassment could result in termination.

[12] On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.”

[13] On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I.”

[14] On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day.

[15] Before Robel left the deli, she overheard Smith comment to other deli employees, “Can you believe it, Linda’s gonna sit on her big ass and get paid.”

[16] Robel again contacted [her union rep], who in turn contacted Wissink on September 20, 1996.

[17] On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitc[-][,] the little plays they were doing about [her] back.”

[18] On September 28, 1996, Wissink terminated one employee.

[19] Robel never returned to work at Fred Meyer.

[20] On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination …, retaliation for filing a workers’ compensation claim …, negligent and intentional infliction of emotional distress, and defamation.

[21] The trial court denied Fred Meyer’s motion for summary judgment … [f]inding for Robel on all five causes of action[.]

[22] Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims.

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (internal citations omitted) (hyperlink added).

ISSUE #1: Does the Washington Law Against Discrimination, Chapter 49.60 RCW, support an employee’s disability based hostile work environment claim?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION: Under the Washington Law Against Discrimination (WLAD), RCW 49.60, “It is an unfair practice for any employer to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (citing RCW 49.60.180(3)) (alteration to the original).

[1-2] RULES OF CONSTRUCTION: To determine whether the Washington Law Against Discrimination “supports a disability claim based on hostile work environment, [courts] may look to federal cases construing analogous federal statutes.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980)).

[1-3] ISSUE OF FIRST IMPRESSION: In this case, the Court determined that whether the Washington Law Against Discrimination supported a disability based hostile work environment was an issue of first impression in the State.

It reasoned that “just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims.” Id. at 45 (hyperlinks added).

[1-4] WLAD SUPPORTS DISABILITY-BASED HOSITLE WORK ENVIRONMENT CLAIMS: The Court held that “the [Washington Law Against Discrimination] … supports a disability based hostile work environment claim.” Id. at 43.

ISSUE #2: Did the trial court’s unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

[2-1] DISABILITY BASED HOSTILE WORK ENVIRONMENT: In order to establish a disability based hostile work environment case, a plaintiff must prove “(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD], (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms and conditions of employment, and (5) that it was imputable to the employer.” Id. at 45.

[2-2] THE SECOND ELEMENT (UNWELCOME): To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

[2-3] THE THIRD ELEMENT (BECAUSE OF DISABILITY): To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

[2-4] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original).

“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration to the original) (hyperlink added).

[2-5] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): To impute harassment to an employer, “the jury must find either that (1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that (2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.” Id. at 47 (internal citation and quotation marks omitted) (alteration to the original).

[2-6] THE FIRST ELEMENT (DISABLED): In this case, neither party contested that Robel’s injury was a disability under RCW 49.60.180(3). Id. at 35. Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

[2-7] THE SECOND ELEMENT (UNWELCOME): The Court found that no findings suggested that Robel solicited or incited the remarks made about her workplace injury. Id. at 45. That Robel viewed the employer’s conduct as undesirable and offensive was at least implicit in her reporting the conduct to Banka (her Union Representative). Id. at 45-46.

[2-8] THE THIRD ELEMENT (BECAUSE OF DISABILITY): The trial court found that the verbal and non-verbal harassment of Robel in the work setting after July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled. See id. at 46. The Court, in the instant case, elected not to substitute their judgment for that of the trial court. Id.

[2-9] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): The trial court found that Fred Meyer created a hostile and abusive work environment and that the environment was offensive to Robel. Id. at 46-47 (internal quotation marks omitted).

The Court, in the instant case, pointed to an additional trial court finding as follows: “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end … the verbal and non-verbal harassment of Robel in the work setting.” Id. at 47.

The Court found that this language echoed the “critical language from Glasgow and the pattern jury instruction”; it accepted the findings as “verities” and passed on “any reweighing of the evidence supporting them.” Id.

[2-10] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): The Court identified relevant trial court findings as follows:

[a] “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996[;]”

[b] “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting[;]”

[c] “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability[;]”

[d] “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment[;]”

[e] “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate[;]” and

[f] “the postinjury harassment was ‘imputed to Fred Meyer.'”

Id. at 48 (internal citations and quotation marks omitted) (lettered paragraphs added).

The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

[2-11] COURT OF APPEALS REVERSED / TRIAL COURT JUDGMENT REINSTATED: The Court concluded “that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim.” Id. at 48. It then reversed “the Court of Appeals and reinstated the trial court’s judgment in Robel’s favor.” Id.

ISSUE #3: Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

[3-1] WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE: The Washington Industrial Insurance Act “provides that no employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” Id. at 48-49 (citing RCW 51.48.025(1)) (emphasis in original).

[3-2] FRAMING THE ISSUE: In this case, the Court framed the issue essentially as follows: Whether the Workers’ Compensation Anti-Retaliation Statute, RCW 51.48.025(1), applies to an employer “who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim[?]” See id. at 50.

[3-3] ELEMENTS OF THE CLAIM: It then found that, “by analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove [1] that she had filed a claim, [2] that Fred Meyer thereafter discriminated against her in some way, and [3] that the claim and the discrimination were causally connected.” Id. at 50.

[3-4] FINDINGS OF FACT SATISFY THE ELEMENTS: The Court held that “because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.” Id.

ISSUE #4: Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

[4-1] IIED ELEMENTS: To succeed on a claim for outrage–also known as intentional infliction of emotional distress (IIED)–“a plaintiff must prove three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Id. at 51 (internal citations and quotation marks omitted) (emphasis added).

[4-2] QUESTIONS FOR THE JURY: The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id.

[4-3] EXTREME & OUTRAGEOUS CONDUCT: To establish the first IIED element, the plaintiff must prove “that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotation marks omitted).

[4-4] RELATIONSHIP BETWEEN PARTIES (IIED): In an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Robel, 148 Wn.2d at 52 (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

[4-5] VICARIOUS LIABILITY: “Once an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)).

“An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) ‘intentional or criminal’ and (2) ‘outside the scope of employment.'” Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001)).

[4-6] SCOPE OF EMPLOYMENT: “An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'” Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958); see also RESTATEMENT, supra, § 228(1)).

[4-7] FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT): “Robel was called in her workplace names so vulgar that they have acquired nicknames, such as ‘the C word,’ for example.” Id. at 52. (internal citation omitted) (emphasis in original).

[4-8] VICARIOUS LIABILITY: “Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. at 54.

[4-9] REASONABLE MINDS COULD CONCLUDE EXTREME AND OUTRAGEOUS CONDUCT: On the threshold question (extreme and outrageous conduct) the Court concluded that reasonable minds could conclude that, in light of the severity and context of the conduct, it was beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community. See id. at 51-52.

[4-10] FRED MEYER VICARIOUSLY LIABLE: The Court also concluded that Fred Meyer was vicariously liable, “that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage.” Id. at 54-55.

[4-11] COURT OF APPEALS REVERSED / REINSTATED TRIAL COURT’S JUDGMENT FOR ROBEL ON IIED: The Court then reversed the Court of Appeals and reinstated the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Id. at 55. Because Robel was successful on this claim, the Court found it unnecessary to consider Robel’s companion claim for negligent infliction of emotional distress. Id.

ISSUE #5: Were the allegedly defamatory communications cited in the trial court’s findings capable of defamatory meaning?

[5-1] DEFAMATION: A defamation plaintiff must prove the following four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Id. at 55 (citing Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed. 2d 1339 (1982)) (emphasis added).

[5-2] FALSITY: “Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because expressions of opinion are protected under the First Amendment, they are not actionable.” Id. (citing Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (internal quotation marks and citations omitted) (emphasis added).

“Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. (internal citations omitted).

[5-3] TOTALITY OF THE CIRCUMSTANCES: To determine whether words should be viewed as nonactionable opinions, the court considers the totality of the circumstances surrounding those statements. Id. at 56.

[5-4] DUNLAP 3-FACTOR TEST: To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. (citing Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986)).

[5-5] THE VULGARISMS (I.E., “BITC-,” “CUN-,” “FUC-ING BITC-,” “FUC-ING CUN-“) ALONG WITH THE WORD “IDIOT”: The Court concluded that these vulgarisms along with the word “idiot” were plainly abusive words, but they were not intended to be taken literally as statements of fact. Id. Thus, they did not pass the threshold question of law.

[5-6] THE WORDS “SNITCH,” “SQUEALER,” AND “LIAR”: The Court considered the totality of the circumstances and applied the Dunlap Three-Factor Test. It held as a matter of law that these words also constituted nonactionable opinions. Id. at 56.

Regarding the first Dunlap Factor (Medium & Context): the Court found that the oral statements were made in circumstances and places that invited exaggeration and personal opinion. Id.

Regarding the second Dunlap Factor (The Audience): the Court found that the employee audience (i.e., Fred Meyer co-workers and management personnel) was “prepared for mischaracterization and exaggeration” and would have registered the words, if at all, “as expressions of personal opinion, not as statements of fact.” Id. at 57. And customers hearing the words “would reasonably perceive that the speaker was an antagonistic or resentful co-worker.” Id.

Regarding the third Dunlap Factor (Whether the Words Implied Undisclosed Defamatory Facts): deli workers would have known the facts ostensibly underlying the words, and the words disclosed to customers (i.e., “that Robel was demoing pizzas because she had lied about her back”) “implies no undisclosed defamatory facts.” Id. (internal quotation marks omitted).

[5-7] ALL OF THE UTTERANCES WERE NONACTIONABLE OPINIONS: The Court concluded that all of the utterances were nonactionable opinions and reaffirmed the reversal of the trial court’s judgment on Robel’s defamation claim. Id.

NOTABLES & IMPLICATIONS:

DISABILITY

(1) This case adds an additional initial element to the hostile work environment rule for cases based on disability: He or she must be disabled within the meaning of the Washington Law Against Discrimination.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

(2) The standard for an outrage claim is very high (meaning that the conduct supporting the claim must be appallingly low). See id. at 51.

(3) Relationship Between Parties. In an outrage claim, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

PERSONAL JOURNALS / DIARIES

(4) In Washington State, an employee’s personal journal entries regarding discrimination at work might be allowed by the court to support a claim of unlawful employment discrimination. See, e.g., id. at 41.

SEXUAL HARASSMENT

(5) Washington Law Against Discrimination prohibits sexual harassment in employment, with such claims being generally categorized as quid pro quo harassment claims or hostile work environment claims. See id. at 43 (citing DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996)) (internal citations and quotation marks omitted).

TITLE VII & WLAD

(6) “The [Washington Law Against Discrimination,] … which applies with equal force to sex based and disability based employment discrimination, is analogous to Title VII and the ADA.” Id. at 44.

(7) Although federal cases interpreting Title VII are not binding on the Court, they are instructive and supportive. See id. at 44.

VICARIOUS LIABILITY

(8) Intentional or criminal conduct is not per se outside the cope of employment. Id. at 53.

(9) It is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.

(10) An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

(11) The proper vicarious liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id.

(12) When a servant steps aside from the master’s business in order to effect some purpose of his own, the master is not liable. Id. at 54 (citing Kuehn v. White, 24 Wn.App. 274, 277, 600 P.2d 679 (1979)) (internal quotation marks omitted).

(13) Where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. See id.

WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

(14) To establish a claim of unlawful workers’ compensation retaliation, a plaintiff must prove (1) that the plaintiff filed a claim, (2) that the employer thereafter discriminated against the plaintiff is some way, and (3) that the claim and the discrimination were causally connected. See id. at 50.

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July 2, 2021May 26, 2022

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)

This is a case summary of Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999). Subjects include the following:

» FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS

» CONSTRUCTIVE DISCHARGE

» DAMAGES

» FRONT & BACK PAY

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**Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)**

case summarY – 25 Facts:

[1] Boeing hired … Martini in … 1978.

[2] He worked primarily in the AWACS training organization, training Boeing customers (such as the U.S. and foreign governments) to work with the AWACS military aircraft.

[3] In January 1988 Martini was diagnosed as suffering from sleep apnea, following an incident when he fell asleep at the wheel of his car and drove off the road.

[4] If untreated, sleep apnea makes it difficult to breathe during sleep and results in deprivation of restful sleep and fatigue.

[5] Martini was prescribed a continuous positive air pressure (CPAP) machine which is worn during sleep to prevent the breathing cessation characteristic of sleep apnea.

[6] In 1989, after falling asleep and driving his car off the road for a second time, Martini asked his supervisor at Boeing for accommodations to help him manage his sleep apnea, including relocation and a flexible starting time.

[7] In June 1990 Martini was scheduled to conduct AWACS training … in England.

[8] He became concerned about the trip to England because he feared the long travel time … would exacerbate his sleep apnea, causing increased health problems.

[9] Martini therefore requested vacation in lieu of the trip; however, on the understanding that Boeing would transfer him to a new position and accommodate his health concerns upon his return, he agreed to go to England to conduct the scheduled training.

[10] Upon his return from England, Martini asked about being transferred to a new position and was told the personnel office was too busy to deal with his request.

[11] On the same day Martini was asked to prepare for a trip to France to conduct AWACS training courses scheduled to begin a few months later.

[12] Martini subsequently submitted a letter stating his intent to use his remaining leave and to terminate his employment with Boeing on August 20, 1990.

[13] On August 21, 1990, he signed papers terminating his employment.

[14] After leaving Boeing, Martini tried to find work, but was unsuccessful.

[15] Martini commenced the present action against Boeing, claiming damages for disability discrimination and constructive discharge contrary to RCW 49.60 and seeking reinstatement.

[16] The trial court granted partial summary judgment in favor of Boeing, dismissing Martini’s separate constructive discharge cause of action.

[17] The case then proceeded to jury trial on his disability discrimination claim.

[18] The trial court rejected jury instructions proposed by Boeing which would have prevented Martini from recovering back pay (lost wages calculated from the date the employee stopped work until the date of the verdict) or front pay (calculated from the date of the verdict for a reasonably certain period of time that does not exceed the likely duration of employment) as damages for discrimination.

[19] The jury was instructed, however, that no damages could be awarded unless proximately caused by the discriminatory act.

[20] By special verdict the jury found Boeing had discriminated against Martini and had engaged in a closely related series of discriminatory acts contrary to RCW 49.60.

[21] The jury awarded Martini the following damages for Boeing’s unlawful conduct: lost earnings ($205,356), lost future earnings ($480,932), pain, suffering, and emotional distress ($75,000), and past and future medical expenses ($15,000).

[22] The trial court then entered judgment on the jury verdict.

[23] Boeing appealed to Division One, claiming inter alia that, as Martini had not been constructively discharged, he could not be awarded damages for front and back pay.

[24] The Court of Appeals rejected the argument and affirmed the award of front and back pay.

[25] Boeing petitioned this court for review of the award of damages for front and back pay, and the petition was granted.

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999) (internal citations omitted) (hyperlink added).

ISSUE #1: Whether a plaintiff with a successful discrimination claim under RCW 49.60.180(3) may recover front & back pay as part of damages, if the plaintiff establishes the same was proximately caused by an unlawful discrimination?

[1-1] WLAD MANDATES LIBERAL CONSTRUCTION: “[WLAD] … mandates liberal construction, RCW 49.60.020 … and … embodies a public policy of the highest priority.” Martini v. The Boeing Company, 137 Wn.2d 357, 364 (Wash. 1999) (internal quotation marks and citations omitted) (hyperlink added).

[1-2] WLAD UNFAIR PRACTICES (DISCHARGE & DISCRIMINATION): It is an unfair practice for any employer:

…

(2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

Id. at 365 (citing RCW 49.60.180).

[1-3] UNFAIR PRACTICE TO DISCRIMINATE BASED ON DISABILITY: “One of the acts prohibited by the law against discrimination is discrimination by an employer against an employee because of ‘the presence of any sensory, mental, or physical disability.'” Id. at 366 (citing RCW 49.60.180(3)).

[1-4] UNFAIR PRACTICE TO DISCHARGE BECAUSE OF DISABILITY: “[A]n employer is also prohibited from discharging an employee because of inter alia ‘the presence of any sensory, mental, or physical disability.'” Id. (citing RCW 49.60.180(2)).

[1-5] WLAD DISCHARGE SECTION INCLUDES PROHIBITION AGAINST CONSTRUCTIVE DISCHARGE: “The subsection dealing with unlawful discharge of an employee [(i.e., RCW 49.60.180(2))] has been interpreted to include a prohibition against constructive discharge.” Martini, 137 Wn.2d at 366 (citing Bulaich v. AT & T Info. Sys., 113 Wash.2d 254, 259, 778 P.2d 1031 (1989)) (hyperlink added).

[1-6] CONSTRUCTIVE DISCHARGE DEFINED: “Constructive discharge occurs where an employer forces an employee to quit by making that employee’s work conditions intolerable.” Id. at fn. 3 (citing Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wash.App. 630, 631, 700 P.2d 338 (1985)).

“The doctrine of constructive discharge has been described by this court as requiring ‘a deliberate act of the employer creating the intolerable condition, without regard to the employer’s mental state as to the resulting consequence.” Id. (citing Bulaich, 113 Wash.2d at 261).

[1-7] DISCHARGE OR CONSTRUCTIVE DISCHARGE CAN RESULT FROM WRONGFUL DISCRIMINATION: “A wrongful act of discrimination under the statute does not necessarily lead to discharge of the employee, but it is possible that discharge or constructive discharge can result from such an act.” Id. at 366.

[1-8] DISTINCTION IN WLAD BETWEEN UNLAWFUL DISCRIMINATION & DISCHARGE MEANS DIFFERENT VIOLATIONS: “[S]ince … [WLAD] … deals separately with unlawful discrimination against an employee and unlawful discharge of an employee, it is clear that each of these acts amounts to a different violation of the law against discrimination and gives rise to a separate cause of action under the statute. This would be true even if the claim for discrimination and the claim for discharge arose from the employer’s same act.” Id.

[1-9] WLAD REMEDIES FOR UNFAIR PRACTICES: “[T]he law against discrimination expressly provides:

Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….”

Id. at 366-67 (citing RCW 49.60.030(2)).

[1-10] WLAD PLAIN LANGUAGE SHOWS VICTIMS OF VIOLATIONS ENTITLED TO CLAIM FOR DAMAGES: “[The] … plain statutory language [of RCW 49.60.030(2)] makes it clear that a person who suffers from any violation of … [WLAD] shall have a claim for damages.” Martini, 137 Wn.2d at 367 (hyperlink added).

[1-11] VIOLATION OF RCW 49.60.180(3) ENTITLES VICTIMS TO CLAIM FOR DAMAGES UNDER RCW 49.60.030(2) INDEPENDENT OF WRONGFUL DISCHARGE OR CONSTRUCTIVE DISCHARGE: “A person who was discriminated against by an employer in violation of RCW 49.60.180(3) … [has] a claim for damages under RCW 49.60.030(2).” Martini, 137 Wn.2d at 367 (hyperlinks added). According to the Court:

This claim could be asserted regardless of whether or not the employee had been discharged or constructively discharged in violation of RCW 49.60.180(2). The statute clearly does not require that a discharge violating RCW 49.60.180(2) must occur as a condition precedent to a claim for damages under RCW 49.60.030(2). To the contrary, the statutory language unambiguously states that any violation of the statute will form a basis for a claim for damages.

Martini, 137 Wn.2d at 367 (hyperlinks added).

[1-12] RCW 49.60.030(2) MANDATES A CLAIM FOR ACTUAL DAMAGES: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

[1-13] ACTUAL DAMAGES ARE SYNONYMOUS WITH COMPENSATORY DAMAGES: “‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

[1-14] RCW 49.60.030(2) MANDATES FULL COMPENSATORY DAMAGES FOR VIOLATIONS OF RCW 49.60.180(3): RCW 49.60.030(2) “provides a person who has been discriminated against in violation of RCW 49.60.180(3) with a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages.” Martini, 137 Wn.2d at 368 (hyperlink added).

[1-15] FRONT & BACK PAY AWARD UNDER 49.60.180(3) NOT CONTINGENT UPON SEPARATE & SUCCESSFUL WRONGFUL DISCHARGE CLAIM: “T]here is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 368 (hyperlinks added).

[1-16] WLAD DOES NOT LIMITED TYPE OF COMPENSATION FOR VIOLATION OF RCW 49.60.180(3): WLAD “does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3), but the usual rules which govern the elements of damage for which compensation may be awarded apply.” Martini, 137 Wn.2d at 368.

[1-17] PROXIMATE CAUSE & MITIGATION LIMIT FRONT AND BACK PAY IF NO CONSTRUCTIVE DISCHARGE: “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

[1-18] WLAD PERMITS FRONT & BACK PAY: “Washington’s law against discrimination (RCW 49.60) permits recovery of front and back pay for a successful discrimination claim when these damages are proximately caused by unlawful discrimination.” Martini, 137 Wn.2d at 364 (hyperlink added).

[1-19] CONSTRUCTIVE DISCHARGE NOT REQUIRED FOR FRONT & BACK PAY UNDER RCW 49.60.180(3): “A Plaintiff with a successful disability discrimination claim under RCW 49.60.180(3) is not required to prove a separate claim of constructive discharge in order to obtain damages for front and back pay.” Martini, 137 Wn.2d at 363.

[1-20] BOEING’S ANALOGOUS CASES: In this case, Boeing argued that “damages for front and back pay cannot be awarded for an act of discrimination in violation of RCW 49.60.180(3) unless there is a separate, successful claim for discharge or constructive discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 363.

Boeing further argued that the Court in Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), and Glasgow v. Georgia Pacific Corp., 103 Wash.2d 401, 693 P.2d 708 (1985), applied Boeing’s proposed rule. Martini, 137 Wn.2d at 369.

However, the Court distinguished both Binkley and Glasgow from the instant case.

[1-21] BINKLEY v. CITY OF TACOMA: In Binkley, “an employee claimed violation of his free speech rights and constructive discharge.” Martini, 137 Wn.2d at 369. The employee won on the free speech issue but lost on the constructive discharge claim.

This Court then “vacated the jury verdict on the free speech issue and affirmed on the constructive discharge claim” thereby leaving the employee with no successful claims for relief. See id.

Nevertheless, Boeing relied “on a statement in Binkley that ‘back pay could have been awarded only if Binkley was constructively discharged.'” Martini, 137 Wn.2d at 369 (internal citation omitted). But the Court distinguished Binkley declaring:

The plaintiff was unsuccessful in both his constitutional claim […] and his claim for constructive discharge. He therefore had no basis for an entitlement to damages […] the court’s statement about the damages that the plaintiff might have claimed if the substantive issues had been decided differently have no bearing on whether loss of pay can be awarded in a wrongful discrimination suit.

Martini, 137 Wn.2d at 369 (emphasis added).

The Court also distinguished Binkley from Martini in that “Binkley involved a free speech issue and did not involve a claim under RCW 49.60.” Martini, 137 Wn.2d at 369. The Court then evaluated Glasgow.

[1-22] GLASGOW v. GEORGIA-PACIFIC CORP: In Glasgow, the Court “set out the test under RCW 49.60.180(3) for discrimination due to sexual harassment, finding that the plaintiffs suffered discrimination in violation of the statute and affirming an award of damages for ‘physical, emotional and mental suffering.'” Martini, 137 Wn.2d at 369 (internal citation omitted).

Boeing supported its argument by relying on the Court’s statement in Glasgow that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Martini, 137 Wn.2d at 369-70 (internal citation omitted).

However the Court distinguished Glasgow, stating:

There is nothing in Glasgow which suggests a different kind of damages can be claimed for a constructive discharge violation of the law against discrimination as opposed to a discrimination violation of the statute. At best, Glasgow simply suggests that a different amount of damages might be awarded in a case where there was constructive discharge (the suggestion being that where an employee is constructively discharged, higher damages may be appropriate).

Martini, 137 Wn.2d at 370.

[1-23] MARTINI’S ANALOGOUS CASE: In response to Boeing’s argument, Martini, cited Dean v. Municipality of Metro. Seattle-Metro, 104 Wash.2d 627, 708 P.2d 393 (1985).

In Dean, the Court upheld an award of emotional distress damages, stating:

Under RCW 49.60, proof of discrimination results in a finding of liability. The plaintiff, once having proved discrimination, is only required to offer proof of actual anguish or emotional distress in order to have those damages included in recoverable costs pursuant to RCW 49.60. The damages result from the injury, the discrimination.

Martini, 137 Wn.2d at 370-71.

The Court then noted both that “in Dean the instruction to the jury to award damages for lost earnings (with interest thereon) was not challenged by the parties and was affirmed by this court […] and […] the reasoning in Dean suggests that damages which are proximately caused by the wrongful action may be claimed.” Martini, 137 Wn.2d at 370-71 (emphasis added).

Ultimately, the Court found that “[a]lthough not directly controlling, Dean is in contradiction to the argument made by Boeing that in certain situations a victim of discrimination in violation of RCW 49.60.180(3) may not claim front or back pay.” Martini, 137 Wn.2d at 371.

[1-24] THE COURT’S ANALOGOUS CASE: The Court eventually cited Curtis v. Security Bank, 69 Wash.App. 12, 847 P.2d 507 (1993), and found that it indicated “Washington courts have been willing to affirm awards of damages for front and back pay under RCW 49.60 in cases where there has been no constructive discharge.” Martini, 137 Wn.2d at 372.

In Curtis, a bank employee developed a hip condition and was voluntarily laid off. Martini, 137 Wn.2d at 371. She sued her employer for failing to accommodate her disability in violation of WLAD. Id. at 371-72. “The trial court entered judgment in the employee’s favor, awarding damages for front and back pay. The employer appealed and the award of damages was affirmed.” Id. at 372. There was no separate claim for either discharge or constructive discharge.

The Court ultimately found “that the case law interpreting RCW 49.60 does not support Boeing’s argument. Binkley and Glasgow are not controlling and Dean is clearly inconsistent with the position advocated by Boeing.” Martini, 137 Wn.2d at 372.

[1-25] WLAD PROVIDES A REMEDY OF ACTUAL OR COMPENSATORY DAMAGES: The Court concluded WLADs plain language provides “a remedy of actual (or compensatory) damages for an employee who has been injured in violation of RCW 49.60.” Martini, 137 Wn.2d at 377.

[1-26] WLAD DOES NOT PREDICATE BACK PAY UPON SEPARATE CONSTRUCTIVE DISCHARGE FINDING: Moreover, “[t]he statute does not predicate an award of back pay for discrimination upon a separate finding of constructive discharge.” Id. at 377-78.

And “Washington case law, in particular Dean, supports the proposition that back pay may be awarded for a discriminatory act in violation of RCW 49.60.180(3) even if there is no finding of constructive discharge, so long as the damages were proximately caused by the wrongful act.” Martini, 137 Wn.2d at 378.

[1-27] COURT OF APPEALS AFFIRMED: The Court affirmed the Court of Appeals.

ISSUE #2: Does Title VII and Washington’s law against discrimination have similar remedy provisions such that Title VII case law is applicable to the resolution of this case?

[2-1] WLAD IS BROADER IN SCOPE: “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Martini, 137 Wn.2d at 372. (internal citations omitted) (hyperlink added).

Moreover, Title VII does not “contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 372-73 (citing RCW 49.60.020) (hyperlink added).

Ultimately, “[t]he remedies section of Washington’s law against discrimination is … radically different from the remedies section of Title VII.” Id. at 374.

[2-2] TITLE VII REMEDIES PROVISION: The remedies provision for Title VII is as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay … or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

Id. at 373 (citing 42 U.S.C. § 2000e-5(g)(1)) (hyperlink added).

[2-3] TITLE VII COMPENSATORY DAMAGES EXCLUDE BACK PAY: In 1991, “Title VII was amended … to allow for recovery of compensatory and punitive damages in addition to the available equitable remedies.” Id. at 373 (citing 42 U.S.C. § 1981a(a)) (hyperlinks added).

But “compensatory damages were so defined as to exclude an award of back pay:

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g) ].

Martini, 137 Wn.2d at 373 (citing 42 U.S.C. § 1981a(b)(2)) (hyperlink added).

Thus, “Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device.” Id. at 375 (hyperlink added).

[2-4] TITLE VII BACK PAY IS AN EQUITABLE REMEDY: “Title VII … explicitly regards back pay as an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373 (hyperlink added).

“Federal courts have interpreted Title VII in this way, limiting the circumstances in which back pay may be awarded so as to be consistent with the statutory scheme to provide primarily equitable relief.” Id. at 373-74 (hyperlink added).

To support this finding, the Court referenced a Seventh Circuit case as follows:

The Seventh Circuit noted in Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989): Title VII only provides for equitable relief; a district court cannot award damages, either punitive or compensatory, to redress a violation of Title VII. Consequently, a district court may award back pay to a plaintiff only as an equitable remedy, i.e., if a plaintiff can demonstrate that the defendant discharged him or her, either actually or constructively.

Martini, 137 Wn.2d at 374 (hyperlinks added).

[2-5] WLAD REMEDIES PROVISION: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….” Martini, 137 Wn.2d at 374 (citing RCW 49.60.030(2)) (emphasis in original) (hyperlink added).

[2-6] WLAD COMPENSATORY DAMAGES INCLUDE BACK PAY: “Although RCW 49.60.030(2) also contemplates equitable remedies, such as power to enjoin future violations and to provide for any of the Title VII remedies, the provision very explicitly allows for recovery of ‘actual damages’ which may be awarded as either a sole remedy or in conjunction with an equitable remedy such as an injunction.” Martini, 137 Wn.2d at 374 (emphasis added).

The Court determined that “‘actual damages’ include full compensatory damages.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041 (1976)) (emphasis added).

Thus, in contrast to Title VII damages, “Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

[2-7] THE LEGISLATIVE COMMAND TO AWARD DAMAGES IS STRONGER UNDER WLAD THAN TITLE VII: “The use of the word “may” in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute.” Id. at 375 (citing 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court “may” order affirmative action which “may” include reinstatement with or without back pay)) (hyperlinks added).

“In contrast, Washington’s law against discrimination is more categorical, mandating that a victim of a violation of the statute ‘shall have a civil action … to recover the actual damages.'” Id. (citing RCW 49.60.030(2))(emphasis in original) (hyperlink added).

“The legislative command to award damages is therefore stronger in Washington’s statute than in Title VII.” Id. (hyperlink added).

[2-8] SCOPE OF WLAD VS. TITLE VII: In this case, the Court first determined that the scope of Title VII is not as broad as that in WLAD, because (1) Title VII does not cover marital status, age, or disability as a protected class; and (2) Title VII does not contain a “direction for liberal interpretation” unlike WLAD (RCW 49.60.020). Martini, 137 Wn.2d at 372-73.

Consequently, it compared damage provisions.

[2-9] COMPARISON OF DAMAGE PROVISIONS: The Court determined that Title VII contained damage provisions that were more limited than WLADs.

Particularly, the Court found that Title VII excludes back pay from compensatory damages and regards it as “an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373.

In contrast, WLAD “provides for a general award of ‘actual’ (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

The Court further determined that “[t]he legislative command to award damages is … stronger in Washington’s statute than in Title VII,” because Title VII uses the term “may” in its remedies provision whereas WLAD uses the categorical term “shall.” Id.

[2-10] TITLE VII CASE LAW IS INAPPLICABLE TO RESOLUTION OF THIS CASE: The Court concluded that “[s]ince the remedies provisions of Title VII and Washington’s law against discrimination are so different, the Title VII cases cited by Boeing barring an award of back pay absent a finding of constructive discharge are clearly distinguishable from the present case which involves a violation of state law.” Martini, 137 Wn.2d at 375.

Accordingly, the Court found that “[t]he Title VII case law cited by Boeing must be distinguished because the Title VII damages provision differs markedly from Washington’s law against discrimination.” Id. at 377.

ISSUE #3: Will prohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim further the WLAD policy?

[3-1] TITLE VII POLICY: According to the Ninth Circuit, “[t]he purposes of Title VII are best served when parties, where possible, attack discrimination within the context of their existing employment relationships…. Restricting backpay awards encourages the employee to work with supervisors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate the discrimination.” Id. at 376 (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986)) (hyperlink added).

[3-2] WLAD POLICY IF FURTHERED BY ALLOWING BACK PAY DAMAGES FOR WLAD VIOLATIONS: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-3] THE DOCTRINE OF PROXIMATE CAUSE STILL PROTECTS THE EMPLOYER FROM UNWARRANTED CLAIMS OF BACK PAY DAMAGES UNDER WLAD: “[T]he doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id.

[3-4] TITLE VII POLICY IS TOO LIMITED FOR WLAD: The Court considered the Defendant’s policy argument: “[p]rohibiting a back pay award for violation of RCW 49.60.180(3) in cases where there is no constructive discharge would further the aims of Washington’s law against discrimination.” In so doing, the Court evaluated the policy of Title VII according to Ninth Circuit case law — Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986), supra.

But the Court reasoned:

[T]his argument does not take into account the burden litigation places upon plaintiffs and the inherent disincentive to quit and litigate rather than to stay on the job. Plaintiffs who leave their place of employment potentially face long and difficult battles to obtain damages for discrimination–even if they can prove that they have been discriminated against and can prove the discrimination was the proximate cause of lost pay, it could still be years Before damages are obtained.

Martini, 137 Wn.2d at 376.

The Court then applied its reasoning to the present case:

“Martini left Boeing in 1990, and his case is still in litigation eight years later. A rational employee is unlikely to decide that quitting and suing is easier than attempting to resolve a dispute in the workplace.”

Id. at 376.

[3-5] BACK PAY POLICY: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-6] PROXIMATE CAUSE AS A REGULATOR: And “the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

[3-7] PROHIBITING WLAD BACK/FRONT PAY ABSENT SUCCESSFUL CONSTRUCTIVE DISCHARGE CLAIM DOES NOT FURTHER WLAD POLICY: The Court concluded that “[p]rohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim would not further the policy behind Washington’s law against discrimination.” Id. at 376.

[3-8] ALLOWING WLAD BACK PAY INCENTIVISES EMPLOYERS AND EMPLOYEES TO ERADICATE DISCRIMINATION: Moreover, “allowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id.

[3-9] MADATE OF LIBERAL INTERPRETATION PROTECTS WLAD REMEDIES:“[T]he law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy. Id. at 376-77 (citing RCW 49.60.020).

[3-10] DOCTRINE OF PROXIMATE CAUSE ACTS AS A REGULATOR: And, “[i]n any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

ISSUE #4: Should the Court award attorney fees to Martini for responding to this appeal?

[4-1] RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule…. ” Id. at 377 (referencing RAP 18.1(a)).

[4-2] WLAD: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees ….” Id.

[4-3] In this case, the Court found that “[i]n light of our rejection of Boeing’s arguments, we find Martini should be awarded attorney fees and costs on appeal in addition to the attorney fees and costs awarded by the trial court.” Id. at 377.

[4-4] The Court awarded “Martini attorney fees on appeal and remand[ed] to the trial court to determine the amount of attorney fees to be awarded.” Id. at 378.

NOTABLES & IMPLICATIONS:

FRONT AND BACK PAY: LIMITATIONS

(1) “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

TITLE VII AND WLAD REMEDIES PROVISIONS ARE SIGNIFICANTLY DIFFERENT

(2) “Title VII and Washington’s law against discrimination have significantly different remedies provisions … [.]” Id. at 372. “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Id. “Nor does Title VII contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 373 (internal citations omitted). Moreover, the Court declared:

The remedies section of Washington’s law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.

Id. at 374-75.

WLAD POLICY (BACK PAY)

(3) “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 376.

(4) “Furthermore, the law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy.” Id. at 376-77 (citing RCW 49.60.020).

(5) “In any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

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July 1, 2021May 26, 2022

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)

This is a case summary of Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985). Primary subjects include the following:

» SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)

» IMPUTING HARASSMENT TO EMPLOYER

» CONSTRUCTIVE DISCHARGE

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**Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)**

CASE SUMMARY – 16 Facts:

[1] This case of first impression in this state involves sexual harassment at the work place.

[2] Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].

[3] From October 1979 until January 1982, … a male co-worker, on several occasions ‘would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,] … [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.’

[4] As early as November 1979 the plant manager knew this male employee was ‘using abusive language around female employees’ and had ‘touched or fondled’ this plaintiff and another female employee ‘in an unwanted sexual way.’ No corrective or disciplinary action was taken.

[5] Complaints of the co-worker’s ‘other intimidating behavior’ toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.

[6] Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.

[7] The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.

[8] A complaint was lodged with the plaint superintendent.

[9] The male co-worker would also stare at her ‘in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance.’

[10] She tried to avoid him and informed the plant manager ‘who did nothing.’ She and yet another female employee confronted the plant manager about this ‘continued sexual harassment.’

[11] The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted ‘in an intimidating fashion’ toward this plaintiff because of her complaints.

[12] Not until February 1982 was the male co-worker given a 3-day suspension ‘based on his prior acts of sexual harassment.’

[13] One of the plaintiffs suffered ‘severe emotional anguish and distress demonstrated by physical symptoms’ of various kinds. She resigned in December 1981 after working less than 9 months.

[14] The other plaintiff was ’emotionally and psychologically injured’ and likewise demonstrated physical manifestations of ‘severe emotional distress.’ She resigned in October 1982.

[15] The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.

[16] The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985) (internal citations omitted) (hyperlink added).

ISSUE #1: Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

[1-1] PROMPT & ADEQUATE CORRECTIVE ACTION: Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

[1-2] HOSTILE WORK ENVIRONMENT: “To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]” (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Id. at 406-07 (footnote omitted).

[1-2a] THE HARASSMENT WAS UNWELCOME: “In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.

[1-2b] THE HARASSMENT WAS BECAUSE OF SEX: “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

[1-2c] THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT: “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07

[1-2d] THE HARASSMENT IS IMPUTED TO THE EMPLOYER:

WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added).

SHOWN THROUGH COMPLAINTS/PERVASIVENESS AND INSUFFICIENT REMEDIAL ACTION: “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. (paragraph formatting and emphasis added).

[1-3] ONLY FOURTH ELEMENT (HARSSMENT IMPUTED TO EMPLOYER) WAS AT ISSUE: The Court only addressed the fourth element by reviewing the trial court’s finding as follows:

In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.

Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”

[1-4] PLAINTIFFS SUBJECTED TO HOSTILE WORK ENVIRONMENT: The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404.

The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id.

ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

[2-1] UNLAWFUL DISCHARGE ALONE IS INSUFFICIENT TO SHOW CONSTRUCTIVE DISCHARGE: The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408 (internal citations omitted).

[2-2] INSUFFICIENT EVIDENCE: The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Id.

[2-3] APPELLATE COURT AGREED WITH TRIAL COURT: The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); see also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)).

Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.

NOTABLES & IMPLICATIONS:

POLICY

(1) “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405.

(2) “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981)).

(3) “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).

QUID PRO QUO SEXUAL HARASSMENT

(4) Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.

TITLE VII

(5) “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, n.2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980)).